• Abstract and Figures
• Public Full-text

Hofstra Law & Policy Symposium Volume 2 Article 8 1-1-1997 Ther Personality of International Organisations in English Law Geoffrey Marston Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/hlps Part of the International Law Commons Recommended Citation Marston, Geoffrey (1997) "Ther Personality of International Organisations in English Law," Hofstra Law & Policy Symposium: Vol. 2 , Article 8. Available at: https://scholarlycommons.law.hofstra.edu/hlps/vol2/iss1/8 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law & Policy Symposium by an authorized editor of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. THE PERSONALITY OF INTERNATIONAL ORGANISATIONS IN ENGLISH LAW Geoffrey Marston* I. INTRODUCTION. In his judgment in Arab Monetary Fund v. Hashim (No. 3) in the Appellate Committee of the House of Lords, the highest judicial tribunal in the United Kingdom, Lord Templeman stated: The Tn Council case reaffirmed that the English courts can only identify and allow actions by individuals, sovereign states and corporate bodies. The Yin Council case reaffirmed that the English courts cannot identify and allow actions by international organisations which sover eign states by treaty agree to bring into existence.! The Tin Council case2 was the first of three decisions in the English courts within the last ten years which have directed attention upon the legal status of international organisations in English law with an intensity not previously seen. For many years previous to these decisions a large number of international organisations had operated without obvious difficulty within the British legal system.3 The purpose of this article is to trace in outline the history of this relationship, to see how it was put under strain by the three cases, and to consider whether there are any other areas of doubt which might one day lead to further litigation. II. THE PERIOD UP TO 1940. During the nineteenth century, the United Kingdom became a member of a number of organisations established by inter-State or inter- * Fellow of Sidney Sussex College, University of Cambridge, Cambridge, England. 1. [1991] 2 A.C. 114, 165, 2 W.L.R. 729, 737 (H.L.). 2. J.H. Rayner (Mincing Lane) Ltd. v. Dept. of Trade and Industry, [1990] 2 A.C. 418 (H.L.). 3. This article is confined, out of caution, to the English legal system although it is not assumed that the Scottish legal system has a different approach in the matters treated below. HOFSTRA LA W & POLICY SYMPOSIUM [Vol. 2:75 Government agreements. These organisations, which included the Rhine and Danube river commissions and public utility bodies like the International Telegraphic Union and the Universal Postal Union, had their administrative headquar- ters outside the United Kingdom and the question whether they were entitled to legal personality in English law does not seem to have arisen for determination. United Kingdom legislation was not usually needed to give effect to their status or activities. Even on the rare occasions when legislation was required - e.g. the Sugar Act of 1903' to implement the determinations of the Sugar Commission under the Sugar Convention of 1902 - no provision was made to define the organisation's legal status within the United Kingdom. The creation of the League of Nations by the Covenant forming an integral part of the Treaty of Peace in 1919 first caused legal thinking to turn to the domestic nature of the international body thus created. The Covenant did not expressly provide for the legal personality of the League, either in international law or in the laws of its member States. It did provide in its Article 7(3), however, that the representatives of the League's members and its officials when engaged in the business of the League were to enjoy "diplomatic privileges and immunities" and that the buildings and other property occupied by the League, its officials and by representatives attending its meetings were to be "inviolable".6 As the League's headquarters were established in London for the first year of its life some problems about its legal status might quickly have arisen but in fact none apparently did, although the League must have purported to enter into local contracts for such matters as premises, labour, goods and services. It was as late as 1938 when a question arose over the customs treatment of goods imported into the United Kingdom by the Internation- al Labour Organisation (0LO) in the name of the League. In an internal minute dated December 19, 1938, one of the legal staff of the Foreign Office, W.E. Beckett, wrote: We might point out ... that the Customs have some doubt as to whether the League of Nations as an entity and its property should be treated in the same way as the property of a foreign Government, and 4. For a brief account of nineteenth century international organisations, see DEREK W. BowvEr, THE LAW OF INTERNATIONAL INSTITUTIONS 6-9 (4th ed. 1982). 5. Sugar Convention Act, 1903, 3 Edw. 7, ch. 21 (U.K.). 6. LEAGUE OF NATIONS COVENANT, Jan. 10, 1920, art. 7, para. 4, 5, in ESSENTIAL FACTS ABOUT THE LEAGUE OF NATIONS 15 (Information Section of the League of Nations Secretariat, 9th ed. 1938). 1997] PERSONALITY OFINTERNATIONAL ORGANISATIONS on this we should say that the League of Nations is an entity of which all the members are governments and financed entirely by governments, to treat all matters of State such as those that are treated between governments through diplomatic channels, and that we feel no doubt that this property must be treated in the same manner as the property of the governments who compose it.7 This advice was reflected in the Foreign Office's official response to the Board of Customs on January 12, 1939.8 It was still not clear, however, whether the League and the ILO were to be regarded as distinct legal personalities in English law. The English courts had their first contact with international organisations when one Commander Godman asserted that he was owed money by the Inter-Governmental Committee for Refugees, established not by formal treaty but by a meeting of States at Evian, France, in 1938.' Within the Foreign Office, Beckett wrote that the Committee was not a "corporate body" and so could not be sued as such; as for the possibility of suing the member governments, they would be immune, with the exception of the United Kingdom; as for the possibility of suing the individual persons constituting the Committee, they would be protected either by general diplomatic immunity if they were also foreign diplomats en poste in London or by "governmental immunity" if they were not.'0 In the event, Godman sued four individual members of a sub-committee of the Committee. His statement of claim, however, was struck out by the Court of Appeal on the ground that the action was "one against sovereign States through their agent, the Inter-Governmental Committee". It followed from the doctrine of absolute Sovereign immunity then prevailing in the English courts that the action could not be maintained. III. THE PERIOD FROM 1940 TO 1944. So far, British executive and judicial practice was ambiguous on whether in English law an international organisation, established by treaty or otherwise, was more than a collectivity of its member States, and 7. See Geoffrey Marston, The Origin of the Personalityof International Organisationsin United Kingdom Law, 40 INTL & COmp L.Q. 403, 406 (1991) (quoting letter from W.E. Beckett, Second Legal Advisor, Foreign Office, to the Foreign Office (Dec. 19, 1938)). 8. Id. at 406-07. 9. Godman v. Winterton, Ann. Dig. 205, 206 (Eng. C.A.) (Supp. 1919-1942) (Godman). 10. Marston, supra note 7, at 407. 11. Godman, supra note 9, Ann. Dig. at 207. HOFSTRA LAW & POLICY SYMPOSIUM [Vol. 2:75 therefore possessed a separate legal personality of its own. The perceived need, as part of the war effort, to establish by treaty various international organisations operating within Allied States caused a more detailed scrutiny to be given to their national legal status. The first such body, proposed in a draft agreement of August 1942, was a United Nations Relief and Rehabilitation Organisation (UNRRA) with power to acquire, hold and convey property and to enter into contracts and undertake obligations.12 Discussions began between officials in the United States and the United Kingdom as to how such an organisation could operate under the national laws of each country. The informal opinion of the United States officials was that: ... UNRRA will derive from the international agreement creating it the legal capacity to discharge the functions entrusted to it by the agree- ment and should be accorded in each country a capacity and status in respect of suit, the conclusion and discharge of obligations, the holding of property, etc. like unto that of individual foreign states. We are of opinion that under common law principles UNRRA will enjoy such capacity independently of any legislation defining its position since the effect of the international agreement is not to modify existing rules of law but to create as the agent of the signatory nations as a group a new legal person which would be entitled as such to exercise rights under the existing law. 3 On receipt of the above views, the United Kingdom Attorney-General, Sir Donald Somervell, having consulted amongst others the Legal Advisor to the Foreign Office, Sir William Malkin, observed on October 14, 1943: Apart from natural persons and corporations created by Royal Charter or under Act of Parliament, groups have only been recognised as legal personae under some specific statutory provisions.

Load more

  43

Copy Link